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Collaborative Law and Children | 11 October 2012

The breakdown of a relationship usually results in many different issues having to be addressed. It can also make people focus on what is really important to them in life. Without hesitation, people often say "my children".

The result is that where a couple are separating, whether they are aware of it or not, they can have a common interest – to make sure that their children's future is secure. Both usually want to remain committed parents and do not want their children to suffer because their relationship has not worked.

The ending of a relationship can give rise to many issues which affect the children: where will they live; what time will they spend with the other parent; what part will a new partner play in the child's life; … to name but a few. All issues are important, not just for the adults, but so that the children feel secure about the future.

By choosing to resolve matters via collaborative law, parents are supported by their lawyers through the process of negotiating and reaching agreement on all of the issues that affect their children. Jointly, the parents can make plans for now and for the future and they remain in control of arrangements. The focus is on solutions rather than confrontation and in supporting the link which two people continue to have as parents. Throughout the negotiations, each party's legal representative is on hand to give legal advice and help test out the practicality of arrangements.

The benefits of resolving problems in this way is that parents can talk openly about their children, solutions are more workable and it is less likely that one parent will feel alienated. The result is happier parents, which usually leads to happier children, who then continue to have two supportive parents available to them. A future where both parents can be present at the school play, graduation and wedding day, becomes a true reality.

Frequently asked questions regarding Collaborative Law | 11 October 2012

Question 1– Collaborative Law – what is it?

Answer – This is an integrated cross-disciplinary system for problem solving in a divorce situation. This requires collaborative lawyers to co-ordinate their work with other collaborative professionals who specialise in addressing the emotional and financial problems of divorce. Working together as a team, they seek to contain conflict and to help the family to restructure from a single family system to a two family system. The goal of collaborative divorce is to conserve both the emotional and financial resources of the family.

Question 2 – How does collaborative law differ from conventional divorce representation?

Answer – If you adopt the collaborative process and your spouse or partner also agrees to engage a collaborative lawyer, and we sign a Participation Agreement, then our collaborative lawyer will represent your interests until a final settlement is reached and a written agreement is prepared. Our collaborative lawyer will be retained specifically to assist you in reaching a comprehensive agreement with your spouse or partner. You will retain the right to terminate the collaborative law process at any time and go to Court, but doing so ends representation of you. If your spouse should offer to go to Court, this will also terminate the collaborative law process, and you would need to retain another lawyer to assist you in the Court.

Question 3 – What is the difference between collaborative law and mediation?

Answer – In mediation there is one neutral professional who helps the disputing parties try to settle their case. Mediation can be challenging where the parties are not on a level playing field with on another, because a mediator cannot give either party legal advice, and cannot help either side explain its position. If one side or the other becomes unreasonable, or stubborn, or lacks negotiation skills, or is unable to articulate their concerns, the mediation can become unbalanced. If the mediator tries to deal with the problem, the mediator may be seen by one side or the other as biased. With collaborative law, each party has legal advice and advocacy built in at all times during the process. Even if one side or the other lacks negotiation skills, or financial understanding, or is emotionally upset or angry, the playing field is levelled by the direct participation of the skilled collaborative lawyers.

Question 4 – Is collaborative law only for divorces?

Answer – Collaborative lawyers can do everything that a conventional family lawyer does, except go to Court. They can consider Prenuptial Agreements, Living Together Agreements and Civil Partnerships. Collaborative law can be used in any dispute where disputing parties want a contained, creative and civilised process that builds in good legal advice.

Question 5 – What kind of information and documentation is available in the collaborative law negotiations, and what happens if one side seeks to withhold information to take advantage of the other party?

Answer – Both sides sign a binding agreement to disclose all documents and information that relate to the issues, early, fully and voluntarily. Lawyers stake their professional integrity on ensuring full, early and voluntary disclosure of necessary information. The collaborative agreement requires the lawyer to withdraw upon becoming aware that his or her client is becoming less than fully honest, or participating in the process in bad faith.

Question 6 – Is collaborative law the best choice for me?

Answer – Collaborative law will not suit every case. It is worth considering if:

• You want a civilised, respectful solution of the issues
• You would like to keep open the possibility of friendship with your partner down the road
• You and your partner will be co-parenting children together and you want the best co-parenting relationship possible
• You want to protect your children from the emotional harm sometimes associated with litigation
• You and your partner have a circle of friends or extended family in common that you both want to remain connected to
• You value your privacy in your personal affairs and do not want details of your problems to be aired at Court
• You value control and autonomous decision making and do not wish to hand over decisions about restructuring your financial situation, or child care arrangements, to be a stranger, that is a Judge
• You and your spouse will commit your intelligence and energy towards creative problem solving rather than recriminations or revenge, that is fixing the problem rather than apportioning blame
• You value a quicker, less costly, more creative, more individualised, less stressful and overall more satisfying method of resolving your disputes

Ensuring your private affairs do not become public property | 11 October 2012

Family breakdown, separation and divorce are sensitive issues, and whether you are a public figure, business person, or simply a private individual, most people would hope to deal with their personal affairs in a confidential manner. So how do you resolve who receives the property, what should happen to the business, where the children should live, and how your personal possessions should be divided in the event of family breakdown? Asking a Court to thrash out the nitty gritty can be costly, time consuming and risky. Furthermore, following recent changes, this may no longer be a private matter. Court hearings may no longer be heard in private. The press can attend, and in certain circumstances can report on events. This can be devastating to the individuals and family concerned. So how can this be avoided?

Collaborative Law offers an alternative to the traditional routes for resolution of family issues. It allows couples, with the support of their lawyers, to take responsibility for the process, to negotiate with the aim of reaching a solution which is best for them, and to be in control of the outcome. Furthermore, this is a process which guarantees confidentiality. The fact that a settlement is agreed between the couple often minimises the emotional cost of divorce.

Working things out directly with a former partner can enable people to more easily move on, and can be of great benefit where there are children in a family. Whilst many of the links between a couple are severed when a relationship breaks down, they still remain parents of their children, and still need to find a way to work together. A collaborative settlement is a good foundation for this.

A collaborative approach can also be used at the start of a relationship, and for those wishing to negotiate a Prenuptial or Premarital Agreement, it provides the ideal opportunity for open discussion and negotiation.

A collaborative approach can be ideal when resolving financial assets as a result of family breakdown, particularly when there is a business concerned. Negotiating within an environment of guaranteed confidentiality can ensure all issues are examined in a sensitive, but pragmatic, way.

All lawyers who are collaboratively trained are specialist Family Lawyers, usually with a wealth of experience. This approach encourages lawyers and their clients to focus on solutions, rather than confrontation, and can certainly ensure private matters do not spill out into the public arena.

So who should divide the spoils? | 11 October 2012

So who should decide who gets the house, what should happen to the business, where the children should live, and how your personal possessions should be divided in the event of family breakdown?

Asking a Court to thrash out the nitty gritty can be costly, time consuming, and risky. New rules now make it compulsory for couples to consider resolving issues themselves, before being allowed in front of a Court. It is hoped this measure will encourage families to examine the benefits of a mediation process, including collaborative proceedings, which can often be quicker and cheaper, and less risky, before racing down legal channels.

From April 2011, couples will have to show they have been in contact with an accredited mediator and have at least considered attending a session to look at how mediation might work for them.

In 2009, a total of 132,140 Divorce Petitions were filed. Some 137,480 children were involved in cases, an increase of 14% on 2008 figures. All too often, the Court process can encourage acrimony, and make it difficult for relationships to survive post divorce. Of course, where young children are involved, such relationships are essential for the benefit of the child, and the ability to co-parent following divorce can provide a powerful and positive role model moving forwards.

Collaborative practitioners have always recognised this. The collaborative process encourages parties to take responsibility for their personal lives and encourages transparent face to face negotiations, where clients set their own agenda and work constructively towards a resolution. All parties to the collaborative process undertake not to resolve their matters by making an application to Court, thus avoiding the threat of Court action when negotiations prove tricky.